                                 CODE OF VIRGINIA

 IMPACTS TO WETLANDS (§ 62.1-44.15:21)

A. Permits shall address avoidance and minimization of wetland impacts to the
maximum extent practicable. A permit shall be issued only if the Board finds
that the effect of the impact, together with other existing or proposed impacts
to wetlands, will not cause or contribute to a significant impairment of state
waters or fish and wildlife resources.

B. Permits shall contain requirements for compensating impacts on wetlands. Such
compensation requirements shall be sufficient to achieve no net loss of existing
wetland acreage and functions and may be met through (i) wetland creation or
restoration, (ii) purchase or use of mitigation bank credits pursuant to &#xA7;
62.1-44.15:23, (iii) contribution to the Wetland and Stream Replacement Fund
established pursuant to &#xA7; 62.1-44.15:23.1 to provide compensation for
impacts to wetlands, streams, or other state waters that occur in areas where
neither mitigation bank credits nor credits from a Board-approved fund that have
met the success criteria are available at the time of permit application, or
(iv) contribution to a Board-approved fund dedicated to achieving no net loss of
wetland acreage and functions. The Board shall evaluate the appropriate
compensatory mitigation option on a case-by-case basis with consideration for
which option is practicable and ecologically and environmentally preferable,
including, in terms of replacement of acreage and functions, which option offers
the greatest likelihood of success and avoidance of temporal loss of acreage and
function. This evaluation shall be consistent with the U.S. Army Corps of
Engineers Compensatory Mitigation for Losses of Aquatic Resources (33 C.F.R.
Part 332). When utilized in conjunction with creation, restoration, or
mitigation bank credits, compensation may incorporate (a) preservation or
restoration of upland buffers adjacent to wetlands or other state waters or (b)
preservation of wetlands.

C. The Board shall utilize the U.S. Army Corps of Engineers&#8217;
&#8220;Wetlands Delineation Manual, Technical Report Y-87-1, January 1987, Final
Report&#8221; as the approved method for delineating wetlands. The Board shall
adopt appropriate guidance and regulations to ensure consistency with the U.S.
Army Corps of Engineers&#8217; implementation of delineation practices. The
Board shall also adopt guidance and regulations for review and approval of the
geographic area of a delineated wetland. Any such approval of a delineation
shall remain effective for a period of five years; however, if the Board issues
a permit pursuant to this article for an activity in the delineated wetland
within the five-year period, the approval shall remain effective for the term of
the permit. Any delineation accepted by the U.S. Army Corps of Engineers as
sufficient for its exercise of jurisdiction pursuant to &#xA7; 404 of the Clean
Water Act shall be determinative of the geographic area of that delineated
wetland.

D. The Board shall develop general permits for such activities in wetlands as it
deems appropriate. General permits shall include such terms and conditions as
the Board deems necessary to protect state waters and fish and wildlife
resources from significant impairment. The Board is authorized to waive the
requirement for a general permit or deem an activity in compliance with a
general permit when it determines that an isolated wetland is of minimal
ecological value. The Board shall develop general permits for:

   1. Activities causing wetland impacts of less than one-half of an acre;

   2. Facilities and activities of utilities and public service companies
   regulated by the Federal Energy Regulatory Commission or State Corporation
   Commission, except for construction of any natural gas transmission pipeline
   that is greater than 36 inches inside diameter pursuant to a certificate of
   public convenience and necessity under &#xA7; 7c of the federal Natural Gas
   Act (15 U.S.C. &#xA7; 717f(c)). No Board action on an individual or general
   permit for such facilities shall alter the siting determination made through
   Federal Energy Regulatory Commission or State Corporation Commission approval.
   The Board and the State Corporation Commission shall develop a memorandum of
   agreement pursuant to &#xA7;&#xA7; 56-46.1, 56-265.2, 56-265.2:1, and 56-580
   to ensure that consultation on wetland impacts occurs prior to siting
   determinations;

   3. Coal, natural gas, and coalbed methane gas mining activities authorized by
   the Department of Energy, and sand mining;

   4. Virginia Department of Transportation or other linear transportation
   projects; and

   5. Activities governed by nationwide or regional permits approved by the Board
   and issued by the U.S. Army Corps of Engineers. Conditions contained in the
   general permits shall include, but not be limited to, filing with the Board
   any copies of preconstruction notification, postconstruction report, and
   certificate of compliance required by the U.S. Army Corps of Engineers.

E. Within 15 days of receipt of an individual permit application, the Board
shall review the application for completeness and either accept the application
or request additional specific information from the applicant. Provided the
application is not administratively withdrawn, the Board shall, within 120 days
of receipt of a complete application, issue the permit, issue the permit with
conditions, deny the permit, or decide to conduct a public meeting or hearing.
If a public meeting or hearing is held, it shall be held within 60 days of the
decision to conduct such a proceeding, and a final decision as to the permit
shall be made within 90 days of completion of the public meeting or hearing. A
permit application may be administratively withdrawn from processing by the
Board if the application is incomplete or for failure by the applicant to
provide the required information after 60 days from the date of the latest
written information request made by the Board. Such administrative withdrawal
shall occur after the Board has provided (i) notice to the applicant and (ii) an
opportunity for an informal fact-finding proceeding pursuant to &#xA7; 2.2-4019.
An applicant may request a suspension of application review by the Board. A
submission by the applicant making such a request shall not preclude the Board
from administratively withdrawing an application. Resubmittal of a permit
application for the same or similar project, after such time that the original
permit application was administratively withdrawn, shall require submittal of an
additional permit application fee and may be subject to additional notice
requirements. In addition, for an individual permit application related to an
application to the Federal Energy Regulatory Commission for a certificate of
public convenience and necessity pursuant to &#xA7; 7c of the federal Natural
Gas Act (15 U.S.C. &#xA7; 717f(c)) for construction of any natural gas
transmission pipeline greater than 36 inches inside diameter, the Board shall
complete its consideration within the one-year period established under 33
U.S.C. &#xA7; 1341(a).

F. Within 15 days of receipt of a general permit coverage application, the Board
shall review the application for completeness and either accept the application
or request additional specific information from the applicant. Provided the
application is not administratively withdrawn, the Board shall, within 45 days
of receipt of a complete application, deny, approve, or approve with conditions
any application for coverage under a general permit within 45 days of receipt of
a complete preconstruction application. The application shall be deemed approved
if the Board fails to act within 45 days. A permit coverage application may be
administratively withdrawn from processing by the Board if the application is
incomplete or for failure by the applicant to provide the required information
after 60 days from the date of the latest written application request made by
the Board. Such administrative withdrawal shall occur after the Board has
provided (i) notice to the applicant and (ii) an opportunity for an informal
fact-finding proceeding pursuant to &#xA7; 2.2-4019. An applicant may request
suspension of an application review by the Board. A submission by the applicant
making such a request shall not preclude the Board from administratively
withdrawing an application. Resubmittal of a permit coverage application for the
same or similar project, after such time that the original permit application
was administratively withdrawn, shall require submittal of an additional permit
application fee and may be subject to additional notice requirements.

G. No Virginia Water Protection Permit shall be required for impacts to wetlands
caused by activities governed under Chapter 13 (&#xA7; 28.2-1300 et seq.) of
Title 28.2 or normal agricultural activities or normal silvicultural activities.
This section shall also not apply to normal residential gardening, lawn and
landscape maintenance, or other similar activities that are incidental to an
occupant&#8217;s ongoing residential use of property and of minimal ecological
impact. The Board shall develop criteria governing this exemption and shall
specifically identify the activities meeting these criteria in its regulations.

H. No Virginia Water Protection Permit shall be required for impacts caused by
the construction or maintenance of farm or stock ponds, but other permits may be
required pursuant to state and federal law. For purposes of this exclusion, farm
or stock ponds shall include all ponds and impoundments that do not fall under
the authority of the Virginia Soil and Water Conservation Board pursuant to
Article 2 (&#xA7; 10.1-604 et seq.) of Chapter 6 pursuant to normal agricultural
or silvicultural activities.

I. No Virginia Water Protection Permit shall be required for wetland and open
water impacts to a stormwater management facility that was created on dry land
for the purpose of conveying, treating, or storing stormwater, but other permits
may be required pursuant to local, state, or federal law. The Department shall
adopt guidance to ensure that projects claiming this exemption create no more
than minimal ecological impact.

J. An individual Virginia Water Protection Permit shall be required for impacts
to state waters for the construction of any natural gas transmission pipeline
greater than 36 inches inside diameter pursuant to a certificate of public
convenience and necessity under § 7c of the federal Natural Gas Act (15 U.S.C.
§ 717f(c)). For purposes of this subsection:

   1. Each wetland and stream crossing shall be considered as a single and
   complete project; however, only one individual Virginia Water Protection
   Permit addressing all such crossings shall be required for any such pipeline.
   Notwithstanding the requirement for only one such individual permit addressing
   all such crossings, individual review of each proposed water body crossing
   with an upstream drainage area of five square miles or greater shall be
   performed.

   2. All pipelines shall be constructed in a manner that minimizes temporary and
   permanent impacts to state waters and protects water quality to the maximum
   extent practicable, including by the use of applicable best management
   practices that the Board determines to be necessary to protect water quality.

   3. The Department shall assess an administrative charge to any applicant for
   such project to cover the direct costs of services rendered associated with
   its responsibilities pursuant to this subsection. This administrative charge
   shall be in addition to any fee assessed pursuant to &#xA7; 62.1-44.15:6.

HISTORY: 2007, c. 659; 2008, c. 244; 2013, c. 742; 2018, cc. 114, 636; 2019, c.
545; 2020, c. 622; 2021, Sp. Sess. I, c. 532.